Can a refusal to acknowledge discipline be considered insubordination?
Question: If an employee refuses to sign a disciplinary letter because he disagrees with it, can the misconduct be considered more serious in a progressive disciplinary process?
Answer: An employer has the right to direct its workforce and an employee has an obligation to obey an employer's lawful orders. On this basis, an employee's refusal to sign a disciplinary letter in the face of a direct order from his employer can constitute insubordination in certain circumstances, and therefore can result in further or more serious disciplinary measures pursuant to the employer's progressive discipline process.
Insubordination means an employee's intentional refusal to obey an employer's lawful and reasonable orders. In order to constitute insubordination, three essential elements must be present:
•There must be a clear order understood by the employee.
•The order must be given by a person of authority.
•The order must be disobeyed.
See Henry v Foxco Ltd. and Pacific Press v. C.E.P., Local 115-M.
When determining whether or not the employee's refusal to sign the disciplinary letter amounts to insubordination, it is critical to consider what exactly the employer is asking the employee to acknowledge with his signature on the dotted line. An employer cannot force an employee to accept or agree to the contents of a disciplinary letter, and therefore an employee's refusal to sign a letter acknowledging such would not likely constitute insubordination. However, if an employee is simply being asked to acknowledge receipt of the disciplinary letter and is not being asked to accept or agree with its contents, an employee's refusal to sign in disregard of the employer's explanation and order to do so would likely constitute insubordination.
If an employee is asked to sign a disciplinary letter acknowledging receipt of the letter only and the employee refuses on the basis that he disagrees with the content of the letter, the employer should explain to the employee that his signature is acknowledging receipt of the letter only and is not an indication of the employee's agreement or disagreement with its contents. Once the employer has informed the employee of this, the employer should order the employee to sign the letter and inform him that refusal could result in further discipline. If the employee continues to refuse despite these explanations, warnings, and orders, the employer will likely have grounds to impose further discipline in accordance with its progressive discipline policy on the basis of insubordination. However, the refusal to sign to acknowledge receipt is a separate incident of misconduct; it does not escalate or aggravate the initial misconduct for which the employee is disciplined. It is merely another disciplinary event in the catalogue of the employee's disciplinary history and the progressive discipline process.
For more information see:
•See Henry v Foxco Ltd., 2004 CarswellNB 127 (N.B. C.A.).
•Pacific Press v C.E.P., Local 115-M, 1997 CarswellBC 3029 (B.C. Arb.).
